In re Friend, 11 Cal. 5th 720

Background

Jack Wayne Friend was convicted of a 1984 robbery–murder and sentenced to death; his direct appeal was affirmed and a state habeas petition was denied in 2015.
After a federal court stayed proceedings to permit exhaustion, Friend filed a second state habeas petition raising six claims; the Alameda County Superior Court dismissed it as "successive" under Proposition 66’s Penal Code §1509(d) and denied a certificate of appealability under §1509.1(c).
Proposition 66 (2016) added §1509(d), requiring dismissal of an untimely or successive capital habeas petition unless the court finds by a preponderance of all available evidence that the petitioner is actually innocent or ineligible for death; §1509.1(c) conditions appeals from successive-petition denials on a certificate of appealability.
Pre‑Proposition 66 California habeas law (Clark two‑step) distinguishes claims that could have been raised earlier (subject to the successiveness bar) from newly available claims or claims based on intervening changes in law (the traditional "safety valve").
The Supreme Court granted review to decide: (1) the scope of "successive" in §§1509 and 1509.1; (2) whether §§1509/1509.1 apply when the first petition preceded Proposition 66; and (3) the appellate procedure for successiveness dismissals.

Issues

Issue	Plaintiff's Argument (Friend)	Defendant's Argument (State/AG)	Held
Scope of “successive” in §1509(d) — does it bar all claims in later petitions (including newly available claims) or only claims that could have been raised earlier?	"Successive" should be read narrowly to track traditional habeas law: §1509(d) applies only to claims that were or could reasonably have been raised earlier; newly available claims/new law not subject to the innocence/ineligibility gate.	"Successive" can be read broadly to include any petition after the first; §1509(d) thus applies to all second/subsequent petitions.	The Court adopts the narrower reading: §1509(d) targets claims that would have been deemed successive under existing case law (i.e., those unjustifiably omitted earlier). Claims that could not reasonably have been raised earlier (new evidence, intervening law, etc.) are not subject to §1509(d)’s innocence/ineligibility requirement.
Retroactivity — may §1509(d) be applied to a petition filed after Proposition 66 when the petitioner’s prior petition was filed before Proposition 66’s effective date?	Applying §1509(d) is retroactive because it attaches new consequences to the earlier filing, so it should not apply to cases where the initial petition predated Proposition 66.	§1509(d) applies to any petition filed after Proposition 66; applying current statutory procedures to pending litigation is not retroactive.	The Court held §1509(d) applies to successive petitions filed after Proposition 66 even if the earlier petition preceded the initiative (so long as the prior petition was after Clark). Applying §1509(d) in that posture is not impermissibly retroactive.
Appellate review/certificate of appealability under §1509.1(c) — may a petitioner obtain review of a trial court’s determination that a petition is successive, and on what showing?	A petitioner must be able to appeal a successiveness dismissal; a certificate should issue when the petitioner makes a substantial showing that the petition (or particular claims) is not successive and presents a substantial claim for relief.	The certificate requirement should remain and govern appeals from successiveness dismissals; the certificate may properly encompass the threshold successiveness question.	The Court held §1509.1(c) may be read to allow a certificate to issue on the threshold question that a claim is not successive (i.e., petitioner can seek appellate review by making a substantial showing that a claim is nonsuccessive under Clark as construed). The Court reversed the Court of Appeal’s denial and remanded for consideration under that standard.

Key Cases Cited

People v. Friend, 47 Cal.4th 1 (Cal. 2009) (direct appeal decision in petitioner’s underlying criminal case)
Briggs v. Brown, 3 Cal.5th 808 (Cal. 2017) (considered Proposition 66’s constitutionality and summarized Prop. 66 reforms)
In re Clark, 5 Cal.4th 750 (Cal. 1993) (two‑step successiveness test and "fundamental miscarriage" exception)
In re Reno, 55 Cal.4th 428 (Cal. 2012) (explaining habeas safety valve for claims that could not reasonably have been raised earlier)
In re Robbins, 18 Cal.4th 770 (Cal. 1998) (pre‑Proposition 66 timeliness rules and related habeas principles)
Landgraf v. USI Film Prods., 511 U.S. 244 (U.S. 1994) (retroactivity framework: when statutes attach new legal consequences)
Felker v. Turpin, 518 U.S. 651 (U.S. 1996) (upholding federal AEDPA limits on second‑or‑successive petitions under the federal Suspension Clause)
Panetti v. Quarterman, 551 U.S. 930 (U.S. 2007) (AEDPA’s second‑or‑successive rules do not bar certain later‑arising incompetency claims)
In re Bacigalupo, 55 Cal.4th 312 (Cal. 2012) (example of relief on a second petition where suppressed mitigation evidence warranted relief)